Be careful when dealing with easements arising under a lease that cannot be registered. Typically, this will be a lease of seven years or less (eg when it is a lease of part-only of the land).

The starting point is to distinguish between legal and equitable easements. Easements under a lease for a term of years will be legal easements provided they are created under deed. So, a lease of seven years or less which is made by deed will almost certainly create legal easements. On the other hand, if that same lease is merely in writing, and not granted by deed, then the easement will be equitable. This has important implications:

Legal easements

(a) granted to T over L’s land: these can, and should, be protected by registration. If they are registered then there will be full protection against any subsequent purchaser for valuable consideration, and the easements will also have priority to any existing unprotected interests in L’s land. The alternative to registration is an application for an agreed notice (or a unilateral notice) and that will mean that the easements become equitable, and not legal. While they will have priority against a subsequent buyer for valuable consideration, they will not gain priority against existing, unprotected interests;

(b) easements reserved by L over T’s leasehold land: these easements do not need to be registered and will be valid as soon as they are made. If L wants, however, he can register the benefit of the easements against his dominant land under r73A;

Equitable easements

(c) easements granted to T over L’s land: these easements cannot be registered. What can be done, however, is to enter an agreed notice or a unilateral notice against L’s land;

(d) easements reserved by L over T’s leasehold land: these easements cannot be registered.

It can be seen from this there are definite advantages to executing leases for seven years or less as deeds (rather than merely in writing) so that T can then register those easements against L’s land. For more on this tricky area see LR Practice Guide 62 (www.landreg.gov.uk).